Cooley Pro Bono Team Prevails in California Environmental Lawsuit

San Diego – December 4, 2015 – On December 2, the Third District Court of Appeal threw out California's light brown apple moth pesticide program on the grounds it violates state environmental laws.

The lawsuit involved the California Department of Food and Agriculture's (CDFA) statewide pesticide campaign for the light brown apple moth. The controversial program began by aerially spraying untested pesticides over populated areas of Monterey and Santa Cruz counties in 2007, resulting in hundreds of complaints of harm to human health and wildlife. The apple moth program has cost $6 million in federal funds during the past two years and targets an insect that, to date, has not caused documented damage to crops or wild plants in California.

The ruling hinged on the state's last-minute shift in the program's goal, which began as "eradication" and changed to ongoing "control" of the apple moth. CDFA made this major change in plans when approving the program; however, it did so without analyzing the health and environmental impacts of an indefinite control program, and without reconsidering less-toxic control strategies that the agency had dismissed because those strategies would not "eradicate" the moth.

CDFA also failed to study feasible alternatives to its pesticide-based strategy. The court concluded that the state's analysis "was fatally defective in failing to study a range of reasonable alternatives."

"This ruling vindicates our claim that a state agency cannot engage in bait and switch, presenting one program to the public but approving a significantly different program after the public review period ends," said Summer Wynn, litigation attorney at Cooley. "The court's decision affirms the California Environmental Quality Act's fundamental requirements for informing the public and decision makers."

Working with Earthjustice and the office of the San Francisco City Attorney, Wynn and Kathleen Goodhart of Cooley represented the petitioners, including Our Children's Earth Foundation, the cities of Albany, Berkeley and Richmond, Mothers of Marin Against the Spray, Stop the Spray East Bay, Center for Environmental Health, Pesticide Action Network North America, Citizens for East Shore Parks, Californians for Pesticide Reform, Pesticide Watch, and the City and County of San Francisco.

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